.:. i8-1;'FEDli:RALi REPORTER. I',
D:mSPEAUX (Circuit Court, E.
V:· PENNSYLVANIA rio No. 43.
R.
l"
Pennsylvania. June 16, 1898.)
LIMITATIO:N8-FRAUnULE:NT CO:NCEALME:NT-W HA'I.' CONSTI'l.'UTE8.
In an action at law, not based \lponfraud or violation of trust. the defendant cannot be deprived of the benefit of the statute of limitations on ground of fraudulent concealment, upon proof merely of his silence.
Motion to Take Off Nonsuit. James M.W. Newlin, for plaintift David W. Sellers, for defendant DALLAS, Circuit Judge. cause of action accrued rnore than six years before this suit was brOught. This appears from the ,plaintiff's statement of claim,. which, however, especially avers tb,at, owing to the "fraudulentcencealment by the defendant" of the facts out of which his alleged right to recover arose, he ,was not able to and did not di!!lcoverthem until,within two years of the date of this suit With reference to this averment,. this court, in overruling the defendant's demurrer, said: "Uflle plaintiff proves the fraudulent the limitation does concealment of facts set out in the Qot, we think, apply." The.plainti:\i :accordingly assUIned the burden of proving the fraudulent concealment which he alleged, but he entirely failed to which the would peen he offered upon the pomtws,s;tAAt of the plamtlfl"s busmess agent and attorney in fact. That witness,' however, testifted that during the years 1881, .1882, and '1883, .when the discriminations in transcomplained of were alleged to have been made by portation the defendant against the plaintiff, he (the witness) did not have any conversation with any ageIl1!of the defendant company upon the subject. :OJily upon one occasion, late in 1885 or early in 1886, did he have any, any. persoll representing the defendant company; and the correctness or incorrectness of the information then given him is wholly immaterial. Even if what he was then toldwasabsqlutelyfalse" it did not amount to a fraudulent concealment of whil(h):iadexisted or had been done two or three years before. I have carefully read and re-read the whole of the testimony of this witnesEl,'and' :i:hid it impossible to believe from it that he made, or intended to inquiry with reference to the period of time covered by claim. Onthe contrary, the substance of allthat occu:rredat t,he only .intecview ,to which he has testified seems. to have been thi$; He said that he had been told that other. were then · lower rates than himself, and,he asked that the.same ratel!! s.hould be to him, and was told, in the plaintiff was charged no more than others. This plainly refert:ed to the time of interview, and noUo a period three years prior thereto. Therefore I thought uPon the trial, and I still think, that to have permitted the jury, from such evidence, to
CLAFLIN &: KIMBALL V. MATHER ELECTRIC CO.
795
impute to a man, who has since died, the fraudulent concealment of discrimination in rates (if any existed), in the year 1883, would have been wholly unjustifiable. This is a common·law action, based, not upon fraud or violation of trust, but upon a breach of duty or an implied undertaking. As to such an action the law seems to be well settled, in accordance with the judgment of this court upon the demurrer, that the defendant cannot be deprived of the benefit of the statute except upon proof of actual fraudulent concealment, amounting to something more than mere silence. Armstrong v. Milburn, 54 Law T. {N. S.) 247; v. Buffington, 10 Wkly. Notes Cas. 361; Sankey v. McEleveYl 104 Pa. St. 265; Rankin v. Woodworth, 3 Pen. & W. 48; Barton v. Dickens, 48 Pa. St. 518; Campbell's Adm'rs v. Boggs, rd. 524; Glenn v. Cuttle, 2 Grant, Cas. 273; Fleming v. Culbert, 46 Pa. St. 498; Funk v. Smith, 66 Pa. St. 27; Owen v. Savings Fund, 97 Pa. St. 47; Binney v. Brown; 116 Pa. St. 169, 9 At!. 186; Rhines' Adm'rs v. Evans, 66 Pa. St. 192; Morgan v. Tenner, 83 Pa. St. 305. The decision in Bailey v. Glover, 21 Wall. 342, when considered with reference to the facts and circumstances of that case, does not appear to be in con· flict with those above cited. It is not to be inferred from anything that has been said that r am of the opinion that the plaintiff adduced evidence upon which, but for the plea of the statute, he would have been entitled to a submission of the case to the jury. Several additional questions were raised and argued upon the trial,and on the hearing of the present motion, which, in view of the conclusion I have reached respecting the statute of limitations, it is not necessary to discuss. The motion to strike off the judgment of nonsuit is denied.
CLAFLIN & KIMBALL v. MATHER ELECTRIC CO. (Circuit Court. b. Connecticut. RES JUDICATA-CAUSES OF ACTION BARRED.
June 20. 1898.)
Numerous breaches of a contract occurred before the commencement or an action. but recovery for some of them was then prevented by a temporary bar resulting from a compromise agreement, which afterwards fell through before the trial, so that plaintiff, by amendment, might have Included them in that action. Held, that the jUdgment therein was a complete bar to any subsequent recovery.
This was an action at law by Claflin & Kimball, an incorporated company, against the Mather Electric Company, to recover damages for breach of contract. The case was heard on demurrer to the com· plaint. Hungerford,'Hyde, Joslyn & Gilman, for complainant. Perkins & Perkins, for defendant. TOWNSEND, District .Judge. The parties herein were at issue in an action at law for damages for alleged breach of contract, which